Chapter 1: Introduction

This book is about motions in civil practice, which are simply requests for a judge to do something. Lawyers make motions throughout the life of a lawsuit. They can make a motion to dismiss before they even answer a complaint. And they can make motions after a judgment is entered, such as a motion to vacate that judgment.

Sometimes, lawyers make a motion (make a request) asking the judge for something big—for example, to order dismissal of a claim. Other times, lawyers make a motion asking for something small—for example, to reschedule a court appearance. Generally, but not always, the other side will oppose the motion. If the parties agree but still need to request an order from the court, the moving party can file an unopposed motion.

The motion itself (sometimes titled a “notice of motion” or similar) is simply the form document that states the request. Writing that part is simple. More challenging is writing the brief (also called a memorandum of law) that explains the legal and factual reasons why the court should grant the request. The brief must clearly state the reasons for the request, provide the information the judge needs to make the decision, and attempt to persuade the judge to grant the motion. If the motion is opposed, the other side will write a brief (often called a response or opposition) attempting to persuade the judge to deny the motion. Sometimes, the other party may file a cross-motion, asking the court for related relief, that the other party must then respond to.^[1]

Understand the Applicable Procedural Rules and Use Them to Frame the Substantive Issue

The key to mastering motion practice is understanding that when judges decide a motion, they view the substantive issue through the procedural rules that govern that particular type of motion. Thus, for example, judges view a motion for summary judgment through the procedural rules that govern summary judgment. You must argue motions taking into account these procedural rules.

When you learn about substantive areas of law in your classes, you probably view them as disconnected from the procedural posture in which these issues arose, focusing instead on the underlying legal question. In contrast, judges see substantive issues from the perspective of the procedural posture of the motion that brought the issue before the court—including which party has the burden of persuasion or proof and what that party must establish to prevail. For example, when a party asks the judge dismiss a claim, the judge will view the facts before them in a certain way, depending on the particular moment in the litigation process. These procedural rules apply regardless of what the underlying claim may be, such as a contract claim, a civil rights claim, a negligence claim, or any other type of claim.

For example, suppose you are asked to prepare the defendant’s motion for summary judgment in a negligence case, filed in federal court based on diversity jurisdiction, involving a plaintiff who slipped and fell on a broken stair. Your first task is to find the procedural rules that govern a motion for summary judgment. Because you are in federal court, you will look to the Federal Rules of Civil Procedure. You must also check the court’s local rules and the judge’s particular preferences (sometimes called standing orders), which may impose additional requirements.

You will find that Federal Rule of Civil Procedure 56 provides that a court will grant summary judgment if the moving party shows that there are no disputed material facts and it is entitled to judgment as a matter of law. But the rule says nothing about how the court views the evidence before it. You will have to do further research to find that answer. A good place to start would be the notes of decisions for the applicable rule or statute that sets forth the applicable rule (here, Rule 56). Secondary sources, such as treatises on civil procedure for your jurisdiction, may also be helpful. You should reference case law to fully understand (and be able to cite) the applicable procedural rule.

Once you find the procedural rules, you will know how to frame and argue the underlying substantive legal issue. For example: looking at the evidence in the light most favorable to the plaintiff as the non-moving party (the manner in which the court will view the evidence on a summary judgment motion), did the defendant (the party with the initial burden as the moving party) show that it was not negligent as a matter of law, based on the undisputed material facts, for failure to repair a broken stair (what the party must prove with respect to the substantive issue)?

Here are the general steps you will take when you draft a motion or response:

Step 1

Identify which procedural rules apply. If you are in federal court, the Federal Rules of Civil Procedure apply. If you are in state court, that state’s rules apply. For example, if your claim were in Ohio state court, Ohio’s Rules of Civil Procedure would apply.

Step 2

Consult the applicable procedure rules.

Step 3

Once you find the applicable rule, answer these questions:

• Which party has the burden of persuasion or proof?

• What must that party establish in order to prevail?

• How will the court view the evidence before it?

Step 4

If you cannot answer these questions by reading the rule, you will have to do further research, such as the notes of decision, secondary sources, and relevant case law.

Step 5

Once you find the procedural rules, use them to frame the substantive issue. When your case is in federal court, determine whether federal or state law (and which state’s law) governs the substantive issue.

Comply With All Relevant Rules When Filing Your Motion

Before filing your motion, review:

• The relevant applicable procedural rules for the motion

• The applicable local rules, including rules related to electronic filing (located on court websites)

• The individual practice rules (standing orders) for the judge assigned to your case (located on court websites)

Some requirements are applicable to all kinds of motions in federal court, and usually similar rules apply to state courts as well. For example, under the Federal Rules of Civil Procedure:

• The motion must be in writing and “state with particularity the grounds for seeking the order,” as well as the requested relief. Fed. R. Civ. P. 7(b). The motion must include a caption identifying the court name, party names, case number, and title of filing. Fed. R. Civ. P. 10(a); Fed. R. Civ. P. 7(b)(2).

• An attorney of record must sign the motion and related documents and include that signor’s address, e-mail address and telephone number. Fed. R. Civ. P. 11(a). Check e-filing and local rules to see if any other information is required. By signing the filing, the attorney certifies:

that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

 

Fed. R. Civ. P. 11(b). If this rule is violated, the court may impose sanctions under Rule 11(c). Therefore, it is critically important that you act ethically with respect to filing motions.

• You must serve your motion on all other parties. Fed. R. Civ. P. 5(a)(1)(D). It is not necessary to file a certificate of service if your motion is served on all parties by filing it with the court’s electronic-filing system. Fed. R. Civ. P. 5(d)(1)(B).

Some requirements apply only to particular kinds of motions. Consult the sources of rules outlined above for important information, such as:

• When the motion must be filed^[2]

• When the response brief must be filed

• Whether a reply brief is permitted, and whether the moving party needs to indicate an intention to file a reply brief or request permission to do so

• Whether you should include a proposed order setting forth the relief sought

• Any page or word limits (and how compliance must be indicated and certified)

• Formatting requirements (e.g., font style and size, margins, spacing, etc.)

• Section requirements (e.g., whether particular sections of a brief are required, such as a table of contents, table of authorities, etc.)

• Whether the court prefers or requires hyperlinks to cited authorities

• Supporting documents that must be included, such as affidavits or declarations

• Whether the court prefers or requires a letter motion (a short, more informal request) rather than a formal motion^[3]

• Whether the court permits the use of Generative Artificial Intelligence in preparing the documents and whether the use of these tools must be disclosed

• Whether oral argument must be requested and, if so, how to request oral argument

In short, before filing any motion or response, always check the federal or state procedural rules, local rules, and standing orders to learn the requirements applicable to all motions and your particular kind of motion. Don’t assume anything—always check.

Additional Practical Tips

• Ask for samples

Most likely, someone in your firm or organization has drafted a similar motion in the same jurisdiction. It can be very helpful to have a sample as a reference, though always double check everything yourself to ensure that the document is up-to-date in terms of the law and filing requirements.

• Know your judge

In addition to carefully consulting procedural rules, it’s important to develop an understanding of the preferences of the judge who has been assigned to your case. First check for standing orders from your assigned judge. These orders may include information such as whether and when the court holds oral argument on motions, whether the judge requires parties to bring certain matters (e.g., discovery disputes) to the court’s attention before filing a formal motion, whether courtesy copies (paper or email copies of electronically filed materials for the court’s convenience) are requested, and more. These preferences can vary widely between judges, and it’s important not to overlook this source of rules. Always ask around to gain insight as to past experiences in front of this particular judge. You may find judicial directories to be helpful sources of background information, and you can use litigation analytics to conduct research about your assigned judge and similar cases in a particular jurisdiction. You should take such information into account when deciding whether to file a motion and how to frame it.

• Be cautious using Generative Artificial Intelligence

The world of Generative Artificial Intelligence (“Gen AI”) is rapidly changing. Stories abound of courts sanctioning lawyers for using Gen AI tools unethically. See, e.g., Michael Levenson, Judge Fines Lawyers for MyPillow Founder for Error-Filled Court Filing, N.Y. Times, July 8, 2025 (detailing sanctions imposed on attorneys for filing a brief that “misquoted court cases, misrepresented principles of law and, most egregiously, cited cases that do not exist”) (internal quotation marks omitted).

If you plan to use these tools to research, draft, or revise your motion or response, first check applicable procedural and ethical rules for any relevant prohibitions or required disclosures. For example, some jurisdictions and judges expressly permit the use of Gen AI in preparing filings but require that attorneys check the material and disclose the use of Gen AI tools. As of this writing, some jurisdictions and judges prohibit the use of Gen AI tools entirely. The ABA and local jurisdictions have issued ethical guidelines that must also be consulted. (See, for example, ABA Formal Opinion 512 on the subject.) If the use of Gen AI is permitted by your jurisdiction or judge, always carefully check and validate any material prepared by Gen AI to fulfill your ethical duties to your client and the legal system and include any required disclosures along with your filing.

• Prepare for oral argument

Depending on the court, many motions will be decided “on the papers” (without oral argument). Review the applicable rules to determine if and how you should request oral argument on your motion. If the court does schedule oral argument on a motion, make sure you know what to expect. Is this a formal oral argument dedicated just to your motion, or is the judge hearing many quick arguments in many cases that day? Is the judge likely to be fully familiar with your case before the argument? How much time will be allotted for the argument? Educate yourself about the assigned judge (see above) so that you know what to expect ahead of time. If you can, try to observe some arguments in the judge’s courtroom before the day your argument is scheduled. Even little things like knowing how to navigate the courthouse will reduce stress the day of the argument and ensure that the argument goes as smoothly as possible.

Come prepared to the oral argument with all the motion-related papers and relevant evidence, as well as anything else from the case you might need to reference. Review all the cases that both parties have cited, and make sure you know the relevant facts and applicable law inside and out. Be prepared to address any questions the judge might have about your case and motion. Always be respectful to the judge and opposing party, and remember that your job is to represent your client as well as possible.

What You Will Find in the Following Chapters

Throughout the life of a lawsuit, motions help move a case from complaint to trial. In the following chapters, you will read about how to make a motion to dismiss for failure to state a claim; a motion to compel discovery material and a motion for a protective order related to discovery material; a motion for summary judgment; and a motion in limine. While sometimes the names and specific requirements of these motions vary by jurisdiction, and while there are other types of requests you can make to the court in the form of a motion, these are common types of motions that you’re likely to encounter as a litigator.

In each chapter, you will read about why to make the motion, when to make the motion, the relevant procedural rules, and the necessary supporting documents. You will complete exercises to help you find the procedural rules necessary to frame the substantive issue. At the end of each chapter, you will find examples of documents from a sample case, including the motion or notice of motion itself; brief in support of the motion; brief in opposition to the motion; and supporting documents for both sides. You’ll also find examples of a letter motion (Chapter 3.A), reply brief (Chapter 3.B), and cross-motions (Chapter 5). The samples include questions about the relevant procedural rules, as well as annotations with procedural and persuasive tips.

All sample cases are set in federal court and thus rely on the Federal Rules of Civil Procedure. You’ll find links to each state’s procedural rules in the appendix. Because this book focuses on civil motion practice, all samples are from civil, not criminal, cases. All citations are formatted according to the Bluebook, but always follow local rules and practice in terms of citation format. Please note that the samples are designed to demonstrate the form and persuasive technique of common types of motions; be sure to conduct your own research as to any pertinent procedural rules and legal issues to ensure that you’re relying on an up-to-date statement of the procedural rules and substantive law.

Now that you’ve read the introduction and learned some basic considerations, this book is designed so that you can reference the remaining chapters out of order, depending on the information you need.